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9 - The Appellate Body Interpretation of “Sunset Reviews” Provisions of Anti-Dumping and Countervailing Measures Agreements: A Critical Analysis

Published online by Cambridge University Press:  03 May 2010

Kyle W. Bagwell
Affiliation:
Stanford University, California
George A. Bermann
Affiliation:
Columbia University, New York
Petros C. Mavroidis
Affiliation:
Columbia University, New York
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Summary

Introduction

The World Trade Organization (WTO) Anti-Dumping (AD) Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) require that AD duties and countervailing measures (CVMs) be terminated no later than five years from their imposition unless domestic authorities determine, with a specific review initiated before the mentioned deadline, that the expiry of the duty would likely lead to continuation or recurrence of dumping (or subsidization) and injury. If domestic trade authorities terminate the review with a negative determination of likelihood, either with respect to dumping (or subsidization) or injury, the duty expires (sunset).

However, the WTO sunset reviews rules provided in Article 21.3 of the SCM Agreement and in Article 11.3 of the AD Agreement are vague and do not accurately regulate all of the complex aspects of the sunset reviews procedure. Indeed, in both agreements, the text of the articles regulating the sunset reviews was the result of complex negotiations, and the provision of an expiry deadline was an absolute novelty, as before the Uruguay Round there were no rules providing for the termination of AD and countervailing duties within a predetermined deadline. The relevant articles in the AD and SCM Agreements provide only a generic discipline, which is only partially complemented by the rules applicable to basic proceedings. Indeed, Article 11 of the AD Agreement and Article 21 of the SCM Agreement make a reference, respectively, to Article 6 of the AD Agreement and to Article 12 of the SCM Agreement regulating the procedural part of the sunset reviews.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2009

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References

Moore, M.M., Commerce Department Antidumping Sunset Reviews: A First Assessment. Journal of World Trade 36 (2002).CrossRefGoogle Scholar
Moore, M.M., An Econometric Analysis of US Antidumping Sunset Review Decisions. Review of World Economics/Weltwirtschaftliches Archiv 142 (2006).CrossRefGoogle Scholar
Brown, C. and Wauters, J., United-States Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, Mavroidis, P. (Ed.) (Geneva, Staiger, 2006)Google Scholar
Moore, M., “Commerce Department Anti-Dumping Sunset Reviews: A First Assessment,” in 36(2) Journal of World Trade 2002, 675 ffCrossRefGoogle Scholar
Meagher, N.P., “The Sound of Silence. Giving Meaning to Omissions in Provisions of the WTO Agreements,” 37(2) Journal of World Trade 2003, 417Google Scholar

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